The presence of telecoms apparatus on a development site or building can prove to be a real headache for developers - lengthy and costly delays is very much the rule rather than the exception.
The Electronic Communications Code gives designated telecoms operators statutory powers to install and operate their apparatus on land and buildings. Whilst the basic premise of the Code is that Code rights can only be conferred by agreement, operators have recourse to the Lands Tribunal to impose terms if agreement cannot be reached. Once installed, the statutory protections afforded by the Code make it very difficult to recover possession of a property and have the telecoms apparatus removed at the contractual expiry date or indeed at any point after that.
Here are our top takeaways for dealing with telecoms apparatus:
- Identify the location of any telecoms apparatus and find out who it belongs to
Masts and antennae will usually be clearly visible on a site visit but, on occasion, only become known to the developer/purchaser once the purchase contract is in place. Underground cabling will be more difficult to identify but appropriate enquiries should be made, and utilities searches obtained, at an early stage in the due diligence process.
- Check that the operator has Code powers
Code powers are only available to Ofcom approved operators and the current list can be checked here Register of persons with powers under the Electronic Communications Code - Ofcom. If the operator does not have Code powers, the developer is in a much stronger position.
- Ask for the evidence that the operator has Code rights for the apparatus
Ask the seller to produce any lease, wayleave or other agreement conferring Code rights and, if that does not confirm the position, ask the operator.
If an agreement cannot be traced, consider serving a notice under paragraph 39 of the Code requiring the operator to disclose whether it has Code rights. If the operator fails to disclose this information within three months, the owner is protected against costs incurred in taking action to enforce removal of the apparatus.
- Check if the agreement is still alive
If the agreement expired prior to the new Code coming into effect in December 2017, then the Code rights may have fallen, but beware of leases running on tacit relocation as these are treated as continuing Code agreements.
- Explore available options under the old Code v the new Code
If the agreement was in force when the new Code came into effect, the old Code procedure may be available to require the alteration (including removal) of apparatus that was installed under the old Code. There are tests to be met and the costs of relocation will normally fall on the developer but the comparatively shorter timescales that apply may make this an attractive option.
- Seek to terminate
A minimum of 18 months' notice must be given to terminate an agreement and, termination is only permitted where one of the following grounds is met: (1) substantial breaches by the operator, (2) persistent delays by the operator in making payments, (3) the test for the imposition of Code rights is no longer met, or (4) the site provider intends to redevelop the land upon which the apparatus is sited.
- Lift it, shift it
If the agreement cannot be terminated in the short term, a contractual lift and shift provision may allow the apparatus to be relocated elsewhere on the property and may deal with how the costs will be met. Lift and shift provisions must be looked at carefully on a case-by-case basis as a provision which is inconsistent with the termination and removal procedures under the Code will be unenforceable.
- Don't get caught out in the future
When negotiating any new agreement, or the renewal of an existing agreement, include a redevelopment break clause allowing the owner to terminate on 18 months' notice if termination is required for redevelopment purposes. Similarly, include a lift and shift provision allowing the apparatus to be relocated if it can be accommodated elsewhere.
- Beware overhead lines
Code operators have automatic rights to fly lines above property where there is no other apparatus installed (e.g., supporting poles) subject to minimum clearance distances. There is a procedure for objecting to such overhead lines where alterations (including removal) are necessary to enable development to be carried out.
- Keep your eye on the clock
The termination and removal procedures can easily take 2-3 years and, in some cases, longer. Engage with the operator at an early stage and try to negotiate relocation on a consensual basis.
If you have any concerns or questions about the presence of telecoms apparatus and how it may affect your proposals, please do not hesitate to get in touch with one of our telecoms experts or your usual Brodies' contact.
This article is part of a series covering utility management on development sites and others on Electricity Apparatus and Water Mains and Sewers are also available.
Contributor
Partner
